115 N.Y.S. 684 | N.Y. App. Div. | 1909
The question involved in this case is whether the legacies of $5,000 to Sarah Appleby and Mary Bailey Dortie, bequeathed by the codicil, are substitutionary or accumulative. It is undoubtedly the general rule that the repetition of a legacy in the same instrument is substitutionary, and that the repetition of it by a second instrument, as in the ease of a will and a codicil, is accumulative ; but this question, like every one of construction, is one of intention to be determined from the intrinsic evidence of the documents themselves and the circumstances of the case (Dewitt v. Yates, 10 Johns. 156; Southgate v. Continental Trust Co., 74 App. Div. 150), which is far from saying that extrinsic evidence may be admitted to show an intention different from that shown by the will itself.
Notwithstanding the general rule and the prefatory statement of the codicil that it is “ to be taken as a supplement and addition ” to the will, the internal evidence furnished by the will and the codicils conclusively shows that in making the second codicil the testator was engaged in substitution and not in. addition. The codicil is complete in and of itself. Its evident purpose was to empower the executors to sell the real estate and perhaps to drop out one executor. The language of the will is repeated almost literally. Why that was done in place of merely making the desired changes is a matter of speculation. If one part of the codicil is to be regarded
The judgment is affirmed.
Woodward, Jenks, Gaynor and Rich, JJ., concurred.
Decree of the Surrogate’s Court of Orange county affirmed, with costs to the respondents payable out of the estate.